Opinion
2011-11-1
Robert J. MANZARI, et al., Plaintiffs–Respondents,v.John R. BURROWS, etc., et al., Defendants–Appellants,“Jane Doe,” etc., et al., Defendants.
Sheldon Farber, New York, for appellants.Robert Dembia, P.C., New York, for respondents.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered March 29, 2011, which, in this action to recover for alleged personal injuries sustained by plaintiff Robert J. Manzari while riding a horse at a stable owned and operated by defendants-appellants, denied defendants' motion to change venue to Delaware County, unanimously affirmed, without costs.
Defendants failed to sustain their burden of showing entitlement to a discretionary change of venue pursuant to CPLR 510(3) ( see Aretakis v. Tarantino, 300 A.D.2d 160, 751 N.Y.S.2d 481 [2002] ). In particular, defendants failed to present “affidavits or other proofs” from material witnesses claiming that they would be inconvenienced by testifying in New York County ( Herrera v. R. Conley Inc., 52 A.D.3d 218, 219, 860 N.Y.S.2d 21 [2008] ). Even if such affidavits are not required, defense counsel's assertion that the inconvenience was “obvious” and “manifest,” is insufficient to meet defendants' burden ( see Hernandez v. Rodriguez, 5 A.D.3d 269, 270, 773 N.Y.S.2d 297 [2004] ). In addition, defendants failed to show that the testimony of the purportedly inconvenienced nonparty witnesses was material and necessary ( Argano v. Scuderi, 6 A.D.3d 211, 212, 774 N.Y.S.2d 323 [2004] ).
FRIEDMAN, J.P., CATTERSON, MOSKOWITZ, FREEDMAN, ABDUS–SALAAM, JJ., concur.